General Terms of Sales and Supply

Serafin Campestrini GmbH                 

1. General points
1.1. These General Terms of Sale and Supply (hereinafter GTSS) apply to all contractual relations (supply and other services) between Serafin Campestrini GmbH (hereinafter SECA) and the recipient of the supply or other service (hereinafter the Customer). In accepting the order acknowledgement or the supply the latter accepts GTSS' validity. These GTSS form a framework agreement for all further legal transactions between the contracting parties, even if explicit reference is made to their applying neither in the order acknowledgement nor at the time of actual supply.
1.2. Arrangements contained in SECA's order acknowledgement that deviate from or supplement these GTSS take precedence over the latter. Any of the Customer's terms that contradict or deviate from these GTSS cannot form part of the contract unless SECA explicitly agree in writing to their applying.
1.3. To the extent that no arrangements are made in these GTSS, standard practice in the Austrian wood trade applies, as do the relevant Austrian standards (ÖNORMEN) as currently formulated and all other mandatory legal provisions.
1.4. If the goods supplied by SECA are described by means of foreign grading and quality criteria, grade and quality are to be assessed in terms of the grading and quality regulations applying in the countries in which these regulations apply.
1.5. If the Customer is a consumer as defined in § 1 Section 1 No. 2 of the Austrian Consumer Protection Act (KSchG), the special provisions of section 12 apply.

2. Conclusion of contract:
2.1. Communications from SECA – including those in response to an enquiry by the Customer – are subject to alteration, even if they contain prices, deadlines and other technical details; technical information or solutions proposed by SECA are also subject to correction. Agreements between the Customer and employees of SECA are legally binding only if SECA has empowered these employees in writing to conclude such agreements and/or SECA explicitly recognizes these agreements in writing.
2.2. The contract is concluded only when a written order acknowledgement from SECA reaches the Customer or delivery takes place.
2.3. All agreements are legally binding only if in writing (fax is sufficient).

3. Changes to / cancellation of orders, return of goods supplied:
3.1. For changes to / the cancellation of an order by the Customer to take effect, SECA's explicit agreement in writing is necessary.
3.2. If SECA's operations are shut down for more than 30 working days (for whatever reason), SECA is entitled to cancel the purchase contract unilaterally. The Customer waives any right to compensation arising out of this title.
3.3. As a general rule the Customer has no right of return vis-à-vis SECA. Goods supplied can be returned only if SECA agrees to this in writing, in which case refunding involves a 20% deduction from the value of the goods. The customer bears any freight charges incurred.

4. Prices:
4.1. All prices quoted by SECA are net, i.e. turnover tax (VAT) at the rate applying (currently 20%) must be added on. The current price list issued by SECA forms an integral part of these GTSS.
4.2. All prices are geared to the date of SECA's written order acknowledgement; if this does not contain a price, the price given in the price list in force on the date of supply applies.
4.3. SECA is entitled to adjust the price up to the date of supply (a) if exchange rates shift, (b) if additional costs are incurred because transport capacity is under-exploited, or if shipping is impeded or prevented, (c) if the shipping route is altered for reasons not attributable to SECA, and (d) if freight charges, taxes, customs dues and fees alter in cases where SECA is responsible for shipping (see sections 5.1 b) und 5.1 c) ). The price is to be adjusted in line with the change in these cost components and in the ratio of their share of the price. In these cases the Customer is not entitled to cancel the contract.

5. Transfer, delivery:
5.1. Transfer is effected
a.) in the case of collection by the customer, in that the goods are loaded on the means of transport provided by the Customer, and
b.) in the case of SECA handling shipping, in that the goods are unloaded from the means of transport provided by SECA at the transfer point agreed. Even if SECA contracts to handle shipping, SECA's place of business (currently Ottensheim) remains the place of performance. If SECA handles shipping, the Customer bears the cost of shipping and packing (to the extent that these are necessary for shipping). SECA is not obliged to take out shipping insurance; if the Customer requests such insurance, or if SECA takes it out voluntarily, the Customer bears the resulting costs.
c.) If terms of delivery and transfer other than those provided for in sections 5.1. a) and 5.1. b) are agreed, the provisions of the INCOTERMS in the version in force at the time (currently 2000) apply, either as explicitly laid down in the order acknowledgement or otherwise analogously.
5.2. When the goods are transferred to the Customer, the contract is fulfilled and the risk of loss or damage passes to the Customer.
5.3. In the case of collection by the customer (section 5.1 a) ), the contract is fulfilled in due time if the goods are ready for collection in SECA's storage facility by the transfer deadline agreed.
5.4. If the Customer misses the transfer deadline agreed, he is liable for all losses resulting from this. In that case SECA can choose freely between insisting on the contract being fulfilled, or cancelling the contract, or selling the goods elsewhere and requiring compensation from the customer.
5.5. Delivery deadlines agreed are suspended in the following circumstances, and are postponed until the reason for interruption ceases to apply: breach of the Customer's obligation to cooperate or of other obligations of the Customer's arising out of this or another contract, interruption to or delay in supplying SECA by a subcontractor, technical defects in production and shipping facilities, shortages of raw materials or consumables, and all forms of force majeure. Alongside this period of interruption due allowance is to be made for starting or continuing delivery; the delivery deadlines laid down in the contract slip by the duration of interruption to and of restarting delivery.
5.6. If interruption for a reason listed in section 5.5. continues for more than 3 months, both SECA and the Customer are entitled to cancel the contract unilaterally by written declaration. The Customer forfeits this right (a) if the interruption is attributable to him or (b) if SECA has informed the Customer that the impediment no longer applies and has announced delivery within a reasonable time.
5.7. Unless partial shipments have explicitly been ruled out, SECA is entitled to these. SECA is also entitled to deliver ahead of the deadline agreed. Cancellation of the contract (for whatever reason) has no effect with respect to partial shipments already carried out, unless the reason for cancellation also applies to the partial shipments already carried out.

6. Quantities:
6.1. If the figures given for the quantities to be supplied are qualified by expressions such as “about”, “roughly” or “approximately”, deviations from the values qualified in this way by 10 % up or down are permissible.

7. Terms of payment:
7.1. To discharge the debt, payments must be made to the point(s) of payment named in the invoice. Unless explicitly empowered by SECA in writing to do so, employees of SECA are entitled neither to accept payments or complaints nor to alter the terms of payment agreed hereby and (for instance) to grant other due dates for payment.
7.2. The Customer's bills of exchange or cheques qualify as payment; all bank charges and interest connected with these are chargeable to the Customer. The Customer has fulfilled his obligation to pay only when SECA can dispose unrestrictedly of the credit balances from cashing such bills of exchange or cheques.
7.3. The price is due and payable without deduction on the invoice reaching the Customer. The Customer is entitled to discounts only if these have been explicitly agreed in writing. If the Customer is late in settling subsequent part invoices or the final invoice, discounts on partial invoices already settled become invalid.
7.4. In the case of partial shipments SECA is entitled to invoice for each shipment. For the purpose of the above terms of payment such invoices are due and payable independently of completion of the entire order.
7.5. If there is doubt as to whether the Customer is willing or in a position to pay, SECA is entitled to require payment in advance or surety. If the Customer is in arrears with payment, SECA can require payment in advance in the case of further sales before transfer of the goods in question.
7.6. If the Customer is in arrears with payment, he is to pay interest on arrears at a rate 8 percentage points above the prime rate.
7.7. Apart from interest, SECA can also claim compensation for other losses and expenditure caused by the delay, particularly the cost of pursuance and collection measures in and out of court, to the extent that these are the Customer's fault and are reasonable in relation to the claim pursued.
7.8. If the Customer is in arrears with payment, SECA is entitled to require (apart from interest on arrears) the cancellation of the contract in part or whole.
7.9. Unless SECA explicitly agrees to this in writing, the Customer is not entitled to settle his payment obligations by offsetting these against other claims. Unless SECA explicitly agrees to this in writing, the Customer is also not entitled to withhold payment for whatever reason, particularly on the grounds that defects and losses are involved. The rule against offsetting does not apply if SECA becomes insolvent, and does not apply to counterclaims accepted by a court of law or recognized by SECA in writing.

8. Retention of title:
8.1. The goods supplied remain SECA's property until the purchase price has been paid in full. If the Customer hands over bills of exchange or cheques, the surety in the form of retention of title lapses only when SECA can dispose unrestrictedly of the credit balances from cashing such bills of exchange or cheques.
8.2. SECA's retention of title also applies to the goods resulting from processing or mixing with other goods. In the case of processing with objects still in the possession of others, SECA acquires joint property rights in the resulting products.
8.3. If the Customer sells on goods affected by retention of title (possibly after processing or mixing, as the case may be), the claim for the corresponding purchase price takes the place of retention of title. This claim from selling on is automatically ceded to SECA at the moment when it originates. SECA acquires property in moneys received by the Customer in the form of constructive possession. The Customer is to record the fact of this cession in his books and on his outgoing invoices, and to inform the recipient of the goods accordingly. SECA is entitled to inspect the Customer's accounts and the list of outstanding items, so as to make sure that this obligation has been fulfilled.
8.4. The Customer is forbidden to establish contractual surety rights in the goods to which retention of title applies. If the goods to which retention of title applies are subjected to execution, the Customer is to inform the enforcement officer concerned of the third-party property rights in question, and to inform SECA within 24 hours at the latest. If bankruptcy proceedings are started for the Customer's estate, the official receiver is forbidden to sell the goods to which retention of title applies from the start of such bankruptcy proceedings on.
8.5. If the Customer fails to pay the price backed by surety in the form of retention of title, SECA is entitled to acquire possession of the goods to which retention of title applies, even if the contract has not yet been cancelled as per § 918 of the Austrian General Civil Code (ABGB) (right of recovery).
8.6. If the law of property applying at the place of delivery renders retention of title, or advance cession of the proceeds of selling on, inefficacious, but permits similar forms of surety, this form of surety is deemed to be agreed. To the extent that the Customer is to take suitable steps or make suitable statements for this surety to take effect, he is obliged to proceed in this way even if SECA fails to request this of him.

9. Warranty and compensation for loss:
9.1. SECA warrants that the goods supplied are of the quality and in the quantity stated in the written order acknowledgement. If the order acknowledgement makes no such statement or the goods are supplied without an order acknowledgement, SECA warrants that the goods are of a quality usual for goods of that kind and which the Customer can reasonably expect. If the goods satisfy the conditions mentioned, they conform to the terms of the contract, otherwise they are in contravention of the contract.
9.2. If the Customer claims contravention of contract, the onus of proof is on him to show that the goods were in contravention at the time of transfer.
9.3. The Customer must report any visible damage (e.g. damage in shipping) to the goods supplied and/or any deviation in quantity from that agreed to SECA as soon as the goods are transferred. If the goods are transferred by delivery (section 5.1 b) ), the defects are to be recorded in the shipping documents or (in the case of shipping by rail) to be certified by a railway official. The Customer must lodge any complaints about quality or conformity with standards with SECA by registered mail or fax within seven working days by means of an exact description of the defects claimed, with details of nature and extent. In the case of delivery (section 5.1 b) ) the Customer is obliged to take the goods delivered over and store them separately. If the Customer fails to take the goods over, he is in default and is liable for the consequences of this (see section 5.4).
9.4. If it is shown that the goods supplied are in contravention of the contract, SECA is entitled to comply with the contract within a reasonable time, either by supplying replacements or by remedying the defects in the goods. If remedying the defects or replacing the goods is impossible or would involve SECA in disproportionate expense, the Customer can require cancellation of the contract. Any entitlement to a price reduction is ruled out. SECA is entitled to make several attempts to remedy defects.
9.5. If contravention of the contract is attributable to SECA, the Customer can claim compensation only in the form of remedying defects or replacing goods. If remedying the defects or replacing the goods is impossible or would involve SECA in disproportionate expense, the Customer can claim monetary compensation only if SECA is guilty of criminal intent or gross negligence. This restriction also applies to damages for loss consequent on such defects.
9.6. Entitlement to remedying contravention of the contract and to compensation lapses (a) if contravention of the contract is not reported properly or in time, or (b) if the goods supplied are treated or processed without SECA having an opportunity to check the defect(s), or (c) six months from the date on which risk of loss or damage passes to the Customer (see section 5.2), unless a claim for remedying contravention of contract has been lodged before this deadline.
9.7. If SECA takes allegedly defective goods back, the Customer is required to store the goods in question free of charge and with due diligence until SECA collects them.
9.8. If the Customer inspected or selected the goods before collection (section 5.1 a) ) or delivery (section 5.1 b) ), complaints about quality or conformity to standards are ruled out categorically.

10. Place of performance and jurisdiction:
10.1. All disputes arising from or in connection with a contract based on these GTSS, including disputes about whether a contract has been concluded or is valid, are subject to the jurisdiction of the materially competent court of law in Linz, Austria. Independently of this, though, SECA is entitled to bring suit against the Customer in the materially competent court of law for the latter's place of business or branch, at SECA's choice.
10.2. Contracts concluded on the basis of these GTSS are subject to Austrian material law, with the exception of the UN Convention on Contracts for the International Sale of Goods.

11. Miscellaneous points:
11.1. Should individual provisions of these GTSS be ineffective or illegal, the remaining provisions are effective none the less.
11.2. The Customer waives any right to contest the contract on the grounds of misapprehension.
11.3. The Customer may assign claims only with SECA's express permission in writing. However, SECA is entitled to assign its claims to third parties for financing purposes.
11.4. SECA is entitled to interrupt or retard the fulfilment of its obligations at any time if, after a contract has been concluded, it turns out that the Customer will fail to fulfil an essential part of his obligations (a) due to a serious defect in his capacity to fulfil the contract or in his credit rating, or (b) due to his conduct during preparations for fufilling or during the fulfilment of the contract or of previous contracts. This criterion is satisfied in all cases where the Customer is in arrears with his payments.
11.5. The Customer assents to SECA's storing and processing computerized personal data on the Customer in connection with fulfilling the contract. The Customer expressly agrees to SECA's placing an enquiry with the “Kreditschutzverband von 1870” (database on failures to pay). The Customer also expressly agrees to his name, if appropriate his date of birth and sex, his address and profession, and the amount outstanding and details of reminders sent being made available to this database if he gets into arrears with payment, and to the data in question being made accessible to other providers of credit on goods from this database.

12. Special provisions for transactions with consumers:
12.1. In the case of consumer transactions as defined in § 1 paragraph 1 KSchG the binding provisions of this Act take the place of the corresponding provisions of the GTSS; the latter's other provisions are not affected by this. If gaps develop as a result, these are to be plugged in line with the intent of the GTSS and supplemented by the non-mandatory provisions of law.
12.2. The following sections make it clear which provisions of the GTSS do not apply to consumer transactions or are replaced by other provisions in the case of consumer transactions.
12.3. In accepting the order acknowledgement or the delivery the Customer is deemed to have submitted only if he so conducts himself that (in view of all the circumstances) no reasonable doubt remains that he agrees to the GTSS applying.
12.4. The last sentence in section 2.1 does not apply to consumer transactions.
12.5. Sections 3.2 and 3.3 of the GTSS do not apply to consumer transactions.
12.6. In section 5.6 of the GTSS the period specified there is shortened to 4 weeks.
12.7. In section 7.6 of the GTSS the eight percentage points specified there are reduced to five percentage points. Section 7.9 of the GTSS is not intended to rule out or restrict the consumer's statutory rights of retention. The third sentence in section 7.9 of the GTSS is to be applied to consumer transactions with the proviso that the rule against offsetting does not apply to counterclaims that are legally connected with the Customer's liability, either.
12.8. The two last sentences in section 8.3 of the GTSS apply with the proviso that, as a consumer, the Customer is obliged (if requested by SECA) to name the claims assigned and the corresponding debtors and to hand over all the documents needed for collecting the claims in question.
12.9. Section 9.2 of the GTSS applies to consumer transactions with the proviso that contravention of contract is presumed if it comes to light within 6 months of transfer of goods – unless this presumption is incompatible with the type of goods concerned or the type of contravention. Section 9.3 of the GTSS does not apply to consumer transactions. In the case of consumer transactions sections 9.5 and 9.6 of the GTSS are replaced by the binding provisions of §§ 933, 933 a of the Austrian General Civil Code (ABGB). Section 9.7 of the GTSS applies to consumer transactions with the proviso that consumers are not obliged to exercise due diligence. Section 9.8 of the GTSS does not apply to consumer transactions.
12.9. The last sentence in section 10.1 applies to consumer transactions with the proviso that, as laid down in § 14 of the Austrian Consumer Protection Act (KSchG), suit may be brought against consumers as customers only in courts of law whose jurisdiction covers their place of residence, their usual abode or their place of employment.
12.10. Section 11.2 of the GTSS does not apply to consumer transactions.